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Anthony Fort v. Michael J. Astrue Commissioner of Social Security.

March 12, 2012


The opinion of the court was delivered by: Hon. P. Michael Mahoney U.S. Magistrate Judge


I. Introduction

Anthony Fort seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on March 23, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant filed his application for SSI that became effective on May 9, 2007 alleging a disability onset date of March 17, 2007. (Tr. 80, 95.) The onset date was amended at Claimant's hearing to April 17, 2007. (Tr. 22.) His application was denied initially and on reconsideration. (Tr. 35, 44.) Claimant appeared for a hearing before an Administrative Law Judge ("ALJ") on May 20, 2009. (Tr. 18.) Claimant was accompanied by his attorney and testified at the hearing.

(Tr. 20.) The ALJ issued an opinion denying Claimant's claim for disability benefits on July 23, 2009. (Tr. 9-17.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1.)

III. Background

Claimant was born September 30, 1964, making him 42 years old as of the date of his application for SSI. (Tr. 80.) At his hearing, Claimant testified to the following:

He lived with his wife, three daughters, and two sons. (Tr. 21.) His wife does the cooking and cleaning and his children do yard work. (Tr. 23.) Claimant lays down and watches television all day. (Tr. 23.) He has a driver's license but does not drive due to muscle spasms in his leg. (Tr. 24.) Claimant has a state agency worker who assists him four days a week to help Claimant cook, clean, bathe, and run errands when his wife cannot help. (Tr. 25.) He could put on a shirt but had difficulty with pants and shoes. (Tr. 25.) Claimant is unable to lift anything more than a gallon of milk. (Tr. 25.)

Claimant has a GED. (Tr. 25.) His past work includes construction and heavy lifting jobs such as moving furniture in a retail store. (Tr. 25-26.) In 1999, Claimant had a back surgery as the result of a work-related injury that was settled with his employer. (Tr. 26.) Between 2000 and February of 2006, Claimant was incarcerated for aggravated battery. (Tr. 26-27.) While incarcerated, Claimant was limited to sweeping hallways because of his back problems. (Tr. 27.) After February 2006, Claimant resumed working as an auto salesman. (Tr. 27.) He then switched jobs to begin building trusses for houses for six months. (Tr. 27.) Claimant worked at another furniture store for approximately six months, and then returned to the job building trusses. (Tr. 27-28.)

Claimant was injured around June 2007 while working at the job building trusses. (Tr. 27.) He had a second surgery performed on his back but obtained no relief from the surgery. (Tr. 28.) A subsequent MRI revealed that more discs needed to be fused so Claimant underwent a third surgery in February 2008. (Tr. 29.) His doctors informed him after the third surgery that they cannot perform any more surgeries. (Tr. 29.)

Claimant has fused discs between L1 and L5 vertebrae. (Tr. 22.) He described a constant burning pain down his legs, pain in his back, back problems, and muscle spasms. (Tr. 22.) The third surgery helped somewhat, but he still experiences numbness, burning, and tingling pain in both legs and in his back. (Tr. 22.) Claimant's spasms involve muscles tightening up and causing pain. (Tr. 23.) He takes Norco for the pain and Soma for the muscle spasms. (Tr. 23.) He has to alternate sitting and laying down but does not get good comfort. (Tr. 23.) Claimant also sweats a lot as a result of his medications. (Tr. 23-24.)

IV. Medical Evidence

Claimant visited the emergency room of Swedish American Hospital on May 2, 2007 complaining of back pain that radiated down his left leg. (Tr. 146.) Claimant was able to do a straight leg raise with both legs and hold against resistance, but complained of low back pain while doing so. (Tr. 147.) He was given Valium and an injection of Toradol, and told to follow-up with his other providers. (Tr. 147.)

On May 7, 2007, Claimant saw Dr. Edward S. Lee at OSF Medical Group for lumbar pain and numbness. (Tr. 155.) He underwent an MRI on May 11, 2007 which revealed some enhancing scar tissue since Claimant's last MRI on July 24, 2006. (Tr. 156.) The MRI revealed disc herniation at L2-L3 and canal stenosis at L2-L3, L3-L4, L4-L5, and L5-S1 with a moderatesized right paracentral disc herniation at L5-S1. (Tr. 156.) Claimant was referred to Dr. Crute, a neurosurgeon, at a follow-up appointment regarding the MRI results on May 15, 2007. (Tr. 154.)

Claimant saw Dr. Crute on May 24, 2007. (Tr. 266.) Dr. Crute noted Claimant's history of back and leg pain and performed a complete review of Claimant's systems with a physical examination. (Tr. 266-67.) Dr. Crute found that Claimant had multilevel lumbar stenosis that was moderately severe and unrelieved by multiple conservative modalities such as epidural steroid injections, narcotic analgesics, rest, and reduced activities. (Tr. 268.) Dr. Crute also noted Claimant had a history of hypertension. (Tr. 268.) Dr. Crute recommended that Claimant undergo a lumbar decompression surgery. (Tr. 268.) Claimant had a preoperative evaluation on June 13, 2007, at which time he was advised to follow-up with Dr. Lee regarding his high blood glucose levels and family history of diabetes. (Tr. 265.)

Prior to the operation, Dr. Crute found Claimant to have severe multilevel lumbar stenosis with large herniated discs at L2-3, L4-5, and L5-S1 and moderate scarring at L4-5 and L5-S1. (Tr. 178.) On June 14, 2007, Claimant underwent a decompressive lumbar laminectomy, T12-L1 through L5-S1; foraminotomies, L1-2 through L5-S1; diskectomy, L2-3; redo diskectomy at L4-5; and redo diskectomy at L5-S1. (Tr. 178.) Claimant's postoperative diagnosis was lumbar stenosis, L1-S1; lumbar herniated discs, L2-3, L4-5, and L5-S1; and previous surgery at L4-5 and L5-S1. (Tr. 178.) Claimant was discharged on June 18, 2007 with instructions to follow-up in the clinic. (Tr. 174.)

Claimant met with Dr. Crute on July 23, 2007 for a follow-up regarding his recent surgery. (Tr. 186.) Dr. Crute noted that Claimant stated that he had done relatively well with improved sensation in his feet that had become intermittent. (Tr. 186.) Claimant reported some intermittent burning in his left thigh, considerable incision pain, and swelling with muscle spasms since his surgery. (Tr. 186.) Dr. Crute noted that Claimant had been reluctant to take medication, and was only taking ibuprofin. (Tr. 186.) Notes indicate that Claimant requested permission to return to work, but Dr. Crute advised that he could only return to light duty. (Tr. 187.) Claimant was also advised that he should not drive or sit in a car for more than 30 minutes at a time, but that he could ride in a vehicle that would allow him to move about or lay down. (Tr. 187.)

On July 23, 2007, Dr. William Conroy, M.D., filled out a physical residual functional capacity ("RFC") assessment on behalf of the State Agency based on his review of Claimant's medical records. (Tr. 160-68.) Dr. Conroy noted Claimant's history of back issues and surgeries. (Tr. 167.) His assessment focused on whether Claimant would be able to work within 12 months of his onset date, or by June 14, 2008. (Tr. 160.) Dr. Conroy found that in the future Claimant would be able to occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk for a total of about 6 hours in an 8-hour workday, sit (with normal breaks) for about 6 hours in an 8-hour workday, and would be unlimited in his ability to push or pull (including the operation of hand and/or foot controls). (Tr. 161.) Dr. Conroy indicated that Claimant would have no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 165.) Dr. Conroy opined that Claimant should be able to resume activities within the capacity of the RFC assessment by June 14, 2008. (Tr. 167.)

Claimant had a follow-up appointment with Dr. Crute on August 27, 2007. (Tr. 257.) He reported that he had not filled a prescription for Percocet and was taking only ibuprofin. (Tr. 257.) Claimant reported some improvement since his last visit. (Tr. 257.) Dr. Crute prescribed Flexeril as a muscle relaxant and suggested that Claimant try physical therapy. (Tr. 258.) Notes from a September 24, 2007 follow-up visit indicated that Claimant experienced burning pain and hyperesthesia in his left leg that worsened as Claimant laid on his back along with palpable muscle spasms in the paraspinal lumbar muscles. (Tr. 189.)

On November 8, 2008, Dr. Crute signed a release form indicating that Claimant could return to sedentary work, with no lifting greater than 10 pounds and no bending or twisting. (Tr. 334.) Notes from a November 18, 2007 appointment show that Dr. Crute wished to obtain an MRI of Claimant's lumbar spine based on reports that he would get "charleyhorses" when attempting to perform therapeutic stretching. (Tr. 191.) Claimant reported continued difficulty with low back pain, muscle spasms, and burning pain in his left thigh at a follow-up with Dr. Crute on ...

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